Aftermath of Katrina Affects Immigration Enforcement

Immigration enforcement agents have been assisting rescue and law enforcement efforts in New Orleans and in Gulf Coast areas impacted by Hurricane Katrina. The U.S. Customs and Border Protection (CBP) contributed aircraft for rescue efforts and sent over 100 Border Patrol agents to provide law enforcement to affected areas. More than 700 U.S. Immigration and Customs Enforcement (ICE) agents were deployed to New Orleans and other Gulf Coast areas in the days following the hurricane.

The Department of Homeland Security (DHS) has encouraged unauthorized immigrants affected by the hurricane to come forward and seek assistance, but it has not promised that victims will not be reported to immigration authorities. A spokesperson from the department stated that rescuers have not asked people whether they are in the country legally. However, several storm victims were questioned by immigration authorities and three were ordered to appear for deportation hearings.

By law, unauthorized immigrants are eligible for short-term, non-cash government disaster relief, but they are not able to access federal aid such as food stamps or cash, housing, or job placement assistance that is available to citizens and legally resident hurricane victims.

Jeffrey Passel of the Pew Hispanic Center gave a conservative estimate that the total unauthorized immigrant population in Louisiana, Mississippi, and Alabama was 20,000 to 35,000. According to the 2004 American Community Survey, the foreign-born population in Louisiana was estimated at 125,548. However, this number is at odds with some consular approximations. The Mexican consulate in Houston estimates 40,000 Mexicans lived in Louisiana before the hurricane, and the Honduran embassy in Washington, DC, estimates between 140,000 and 150,000 Hondurans lived in the New Orleans area. Many Hondurans came to New Orleans after being displaced by Hurricane Mitch in 1998.

DHS announced on September 6 that it would suspend employer sanctions for 45 days for employers hiring persons unable to prove they are eligible to work in the country. The move is intended to facilitate the employment of hurricane victims, many of whom have lost the documents needed to prove they are eligible to work. However, DHS stated that employers who fraudulently hire people not eligible to work or individuals who falsely claim to be hurricane victims could be held liable.

To read the DHS press release on the suspension of employer sanctions, click here.

Immigration Prosecutions on the Rise

A new study from the Transactional Records Access Clearinghouse (TRAC) finds that immigration prosecutions grew 65 percent nationally from 2003 to 2004. Based on data from the Department of Justice (DOJ), the findings indicate that the jump was largely driven by a 345 percent increase in prosecutions by the Texas South federal district court.

Excluding Texas South, immigration prosecutions still rose by 16 percent between 2003 and 2004. Authors of the report noted that immigration cases now comprise the largest group of all federal prosecutions, outnumbering drug and weapons charges.

While a spokesman for the U.S. Border Patrol attributed the rise in Texas South to agents' hard work, others cautioned that the reported increase was misleading.

The majority of the increase in convictions in Texas South between 2003 and 2004 reflected a spike in petty misdemeanor charges for illegal entry, while convictions for the more serious immigration-related offenses of reentry of deported aliens and alien smuggling actually fell between 2003 and 2004.

Yet DOJ data in Texas South overstates the increase in illegal entry charges; DOJ has historically undercounted this type of petty misdemeanor offense.

A federal judge in California ruled that immigrants with legal permanent resident status are entitled to temporary government documents while they wait for green cards.

Since September 11, 2001, the amount of time immigrants wait to receive temporary documents after they are legally granted permanent resident status has increased from a matter of weeks to months or even more than a year. The temporary documents would permit over 12,000 people facing this dilemma to work and travel.

The U.S. Department of Homeland Security argued in Santillan v. Gonzales that longer waits were needed in order to do more in-depth background checks.

However, Judge Marilyn Hall Patel rejected that argument and said that current waits prevent people with permanent resident status from exercising their legal rights. She gave the government 60 days to develop a compliance plan that would address current backlogs and ensure more timely processing.

The case is Santillan v. Gonzales in the Northern District of California. To view a copy of the ruling, click here.

Policy Beat In Brief...

Expedited Removal. DHS Secretary Michael Chertoff announced on September 14 that the use of expedited removal would be expanded to all nine Border Patrol sectors along the southwest border. The measure allows immigration inspectors to order removal without the need for court proceedings. Previously, expedited removal was limited to three sectors, except in cases of individuals already issued an order of removal. The new policy is primarily aimed at other than Mexican" immigrants (OTMs) who have spent less than 14 days in the U.S. and are apprehended within 100 miles of the border.

Local Immigration Enforcement. The American Civil Liberties Union (ACLU) and other civil and immigrant rights groups recently obtained a 2002 memo from the Department of Justice (DOJ) asserting that state and local police have authority to enforce federal laws, including immigration laws, even when this authority is not explicitly granted to them. The memo reverses a 1996 letter from DOJ lawyers stating that federal law precludes state or local police from arresting immigrants on the basis of civil deportability. Former Attorney General John Ashcroft cited the 2002 memo as legal justification for his decision to allow state and local officers to arrest people after traffic stops or other violations if they were found to have committed civil immigration violations. The groups obtained the memo with redactions after suing under the Freedom of Information Act.

Supplemental Security Income Benefits. A new court opinion ensures that New York's legal immigrants are entitled to the same benefits as citizens when the benefits are essential to meet basic needs. State Supreme Court Justice Jane Solomon ruled in Khrapunskiy v. Doar that the state violated its constitution when it did not pay equivalent benefits to elderly and disabled legal permanent residents who lost their Supplemental Security Income (SSI) after failing to become U.S. citizens within seven years. New York's constitution requires the state to meet the basic needs of all residents, regardless of citizenship. The state must pay the difference to the immigrants, since federal funds are denied to immigrants after seven years of SSI receipt.

Border Fence. DHS Secretary Michael Chertoff signed an environmental waiver on September 14 to accelerate the completion of the border fence in California. Congress granted the secretary authority to overcome legal challenges to the fence's completion as part of the Real ID Act of 2005, citing concerns that the unfortified border could be vulnerable to terrorists. Most of the 14-mile fence is already completed, but the remaining construction has been delayed since February 2004 by litigation concerning the fence's environmental impact on the nearby Tijuana River wetlands.

Border Patrol. Customs and Border Protection (CBP) Commissioner Robert Bonner announced that Border Patrol sector chiefs will assume tactical control of aircraft in their sectors, managing nearly all of CBP's more than 250 aircraft and 500 pilots. Previously, the planes were used for various CBP activities, but they will now be dedicated to enforcement along the country's borders with Mexico and Canada. CBP has also acquired a new, unmanned aerial craft to monitor difficult-to-access smuggling corridors along the Arizona-Mexico border.